Ag gag legislation is on the rise across Canada
Par Michaël Lessard, avocat et Mme Sangitha Jeyaseelan, student at the Faculty of Law at the University of Montreal
What are “ag-gag laws”? They are laws that prevent journalists and activists from accessing agricultural facilities without authorization by levying heavy fines or imprisonment for such actions. By preventing outsider’s access, experts say that ag-gag laws may limit public awareness of ongoing animal cruelty and keep people in the dark about the conditions in which animals are kept. Activists suggest that bill C-205 is ag-gag legislation, but does the bill fit the bill?
Sponsored by John Barlow, a conservative member of Parliament from Alberta, Bill C-205 is supported by all parties save the Liberals. It has mostly flown under the radar being mentioned only on some niche sites used by farmers or activists. It is surprising that a bill with such potential for controversy has been the subject of minimal public discourse.
Bill C-205: biosecurity risk or gag law?
Bill C-205 proposes to add to the Health of Animals Act the following section:
9.1 No person shall, without lawful authority or excuse, enter a building or other enclosed place in which animals are kept knowing that or being reckless as to whether entering such a place could result in the exposure of the animals to a disease or toxic substance that is capable of affecting or contaminating them.
The goal of the bill would be to enable prosecution of individual if they are proven to have trespassed, yet some ambiguity remains as to whether the current version requires proof of intent. The bill covers objectively low risk behavior such as citizen surveillance of the proper treatment of animals within agricultural installations and aims to deter the practice. In the past, such actions have uncovered cruel treatment so shocking that charges were brought up against the perpetrators.
What of the foundational premise of Bill C-205? The proposed amendment has been justified by its proponents as a necessary measure to protect animal health; however, there is no consensus on the subject. As mentioned by Dr. Jaspinder Komal, the chief veterinary officer of Canada, “the level of risk that will be induced by trespassers would be very minimal, because in order to have a risk from a disease perspective, you have to have continuous and prolonged contact with the animals, as that’s how diseases are spread”. He added that “breach in biosecurity can be caused by anybody—a farm worker or a trespasser or anybody else—and with this kind of activity, the risk of disease is more on the lower side of the ledger. That’s why it is a little bit difficult to see the Health of Animals Act as the right act for this bill to amend.” Some MPs emphasized the deterrent value of the provisions. Yet in committee, Dr Mary-Jane Ireland the Executive Director, Animal Health Directorate of Health Products and Food Branch, Health Canada, stated that “CFIA [Canadian Food Inspection Agency] staff have neither the legal authority nor the training to perform as peace officers, which would be required with this bill. Nor is the CFIA structured, in fact, in a manner that would allow for the timely response to trespassing incidents.”
Bill C-205 would restrict the pool of potential whistleblowers to workers with no background in animal activism or journalism. Activists warn that this bill could decrease reporting of animal cruelty and contribute to its perpetuation.
Ag-gag legislation across Canada
There are currently four provincial laws that can be described as ag-gag laws.
In Alberta, the Trespass Statutes (Protecting Law-Abiding Property Owners) Amendment Act received royal assent in 2019. It brands a person who obtained permission to enter under false pretenses, such as a journalist obtaining a job to report on the livestock living conditions, as having entered without permission. The law revokes the permission to enter provided by the employer due to the employee’s motives.
In Ontario, An Act to protect Ontario’s farms and farm animals from trespassers and other forms of interference and to prevent contamination of Ontario’s food supply received royal assent in 2020. Unlike in Alberta, this bill did not fly under the radar. In fact, Animal Justice, a national animal law organization, is contesting the constitutionality of the law “on the basis that these provisions unjustifiably restrict political expression and peaceful protest activities.” This critique of the bill was endorsed by over 40 Canadian legal scholars.
In Manitoba, The Animal Diseases Amendment Act received royal assent on the 20th of May 2021. Bill 62 was protested this spring. It restricts entry and protest in agricultural installations and prevents individuals from offering succor to transported animals under the guise of forbidding “interference”. However, interference is defined broadly and includes providing water to animals in trucks.
In Prince Edward Island, An Act to Amend the Animal Health Act and An Act to Amend the Animal Welfare Act have been characterized as ag-gag legislation. They both received royal assent on the 4th of December 2020. The changes wrought by these bills include steep fines for entering animal enclosures citing the biosecurity risk posed by such acts. However, as mentioned in committee, the risks involved are minimal, yet the possible fines range from $ 200 to $ 50 000 for individuals as well as the possibility of up to 6 months imprisonment.
The uptick in ag-gag legislation has many activists concerned about the effect of these laws on animal welfare. Now that these statutes have been adopted, activists will bring their fights to the courts. Will ag-gag legislations stand the test of the courts, will they be declared unconstitutional? This issue must be monitored closely.